62 N.Y.2d 158 | NY | 1984
Lead Opinion
OPINION OF THE COURT
The question on this appeal is whether a newspaper, which has been sued for publishing an allegedly libelous letter to the editor, can be precluded from answering the complaint or making any defense to the suit if it refuses to
The Babylon Beacon is a weekly newspaper published on Long Island. Robert Matherson is the owner of the Oak Beach Inn which is also located on Long Island. In March of 1981 Matherson ran a paid advertisement in the paper in which he criticized local officials for failing to take action to protect the public from a dangerous curve on Montauk Highway. The advertisement was captioned “Let’s Stop The Slaughter On Our Highways”. On April 9, 1981 the newspaper published a letter to the editor accusing Math-erson of contributing to the problem and otherwise endangering the public safety in his management of the Oak Beach Inn. The letter alleged, for example, that obviously intoxicated persons were served alcoholic beverages at the Inn, that fire code violations were reported, and that the Inn and the adjacent parking lot were permitted to become dangerously overcrowded. This letter was printed under the caption “Hypocrisy Cited In O.B.I. Advertisement”. At the end of the letter the paper noted that the writer’s name had been “withheld upon request”.
In September of 1981 the plaintiffs commenced a libel action against the newspaper, its owner, and various members of the staff, claiming that the letter contained false statements which had been maliciously published by the defendants. Simultaneously the plaintiffs served a show cause order demanding that the defendants be compelled “pursuant to CPLR Sec. 3102(c)” to disclose “the name and last known address of the writer or writers” of the letter to the editor. In an affidavit attached to the show cause order plaintiffs contended that “knowledge of this matter is
The defendants then moved for reargument. They stated that it is the policy of the newspaper to require those who submit letters to the editor to provide their names, addresses and telephone numbers, if they wish the letters to be published. Defendants noted, however, that it was also the policy of the paper to print letters anonymously when, as in this case, the letter writer so requests. They argued that compelling disclosure of the letter writer’s identity under these circumstances would infringe the defendants’ First Amendment rights and would also violate section 79-h of the Civil Rights Law of this State. The court granted reargument but adhered to its original decision stating: “Civil Rights Law § 79-h, from a plain reading of its terms, does not prevent disclosure. What it does is eliminate contempt as a remedy for failure to comply with court-ordered disclosure. (See CPLR R.3124). Contempt aside, there are other remedies available. (See CPLR § 3126).”
When the defendants still refused to disclose the name of the letter writer, the plaintiffs moved to have them held in contempt for disobeying the court’s order which: “thereby deprived [plaintiffs] of their cause of action against the author of said letter”. This however was only requested “in the alternative”. The primary relief requested was an order, pursuant to CPLR 3126, striking the defendants’ answer and directing the entry of a default judgment against the defendants on the libel complaint. In support of their contention that this remedy was appropriate, the plaintiffs now urged that: “the information sought goes to the heart of the plaintiffs’ libel action. It is an essential
The court held that the remedy of contempt is barred by section 79-h of the Civil Rights Law. The court also held, however, that the Shield Law “in no way inhibits the other remedies” specified in CPLR 3126, “which may be imposed upon a party for refusal to comply with an order directing disclosure”. Relying on CPLR 3126 (subd 3), the court ordered that the defendants’ answer be stricken and that the plaintiffs be permitted to move for summary judgment, or other appropriate relief, unless the defendants made the letter available for inspection within 15 days.
The Appellate Division granted a stay and then reversed. The appellate court noted that privileged material was exempt from discovery under CPLR 3101 (sübd [b]) and concluded that section 79-h of the Civil Rights Law established such a privilege for journalists with respect to their sources. The court observed that the latter statute only speaks in terms of shielding the journalist from contempt, but held that it “would be unduly restricted if journalists invoking the privilege were subjected to large monetary judgments in civil actions upon their refusal to reveal news sources simply because a contempt proceeding was not involved”. (92 AD2d, p 104.) The court also held that a letter to the editor qualifies as “news” within the meaning of the statute.
Although we agree with the Appellate Division that the order of the trial court should be set aside, we do so for different reasons.
The Shield Law was adopted in 1970 as section 79-h of the Civil Rights Law (L 1970, ch 615, § 1). The sponsor of
By its terms the statute expressly provides for “Exemption of professional journalists and newscasters from contempt” (Civil Rights Law, § 79-h, subd [b]). Subsequent amendments have clarified and broadened the statute in some respects (see L 1975, ch 316, § 1; L 1981, ch 468, §§ 1-3). However, the Legislature has never established ah absolute right or granted journalists complete immunity from all legal consequences of refusing to disclose evidence relating to a news source. At the time of these proceedings the relevant portion of the statute provided that “no professional journalist or newscaster * * * shall be adjudged in contempt by any court, the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature or other legislative body having contempt powers for refusing or failing to disclose any news or the source of any such news” (Civil Rights Law, § 79-h, subd [b]).
Contempt is the traditional remedy employed by public bodies against those who have refused to comply with orders to testify or disclose information. It usually involves imprisonment, a fine or both (see, e.g., CPLR 2308; Judiciary Law, § 753). It is considered a drastic measure (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3126:4) and often is defined and prosecuted as a criminal offense (see Penal Law, §§ 215.50, 215.60, 215.65; Judiciary Law, § 750, subd A, pars 3, 5, 7).
The Shield Law’s unqualified immunity from contempt granted to journalists who refuse to disclose their sources, would preclude a court from employing that remedy against such a journalist in a civil case, even in those rare instances where it might otherwise be considered the only appropriate or effective remedy. However, the statutory “[e]xemption * * * from contempt” cannot be fairly read to general exemption from the sanctions authorized by CPLR 3126, most of which function to prevent a party who has refused to disclose evidence from affirmatively exploiting or benefiting from the Unavailability of the proof during the pending civil action.
Of course, if fully utilized some of those sanctions, such as the power of the court to strike pleadings (CPLR 3126, subd 3) may be only theoretically less drastic than contempt in a particular case. A newspaper involved in a substantial libel action may well find the threat of contempt less intimidating than the thought of being entirely stripped of its defenses if it continues to preserve the confidentiality of its source. This type of practical consideration should be taken into account whenever CPLR 3126 is invoked against a newspaper or journalist for failure to disclose a source in a civil case. The consequences of nondisclosure imposed pursuant to the CPLR should not create new obstacles to newsgathering or undermine the strong legislative policy expressed in the Shield Law. The general rule, that the demanding party should not be granted more relief for nondisclosure than is reasonably
In this case there was no need for the court to strike the defendants’ answer and thus subject them to a default or summary judgment on the libel complaint. To the extent, as the plaintiffs belatedly contend, the defendants’ refusal to identify the letter writer may deprive them of evidence relevant to the issue of malice, other remedies are available. CPLR 3126 broadly permits a court to make such orders “as are just” including an order prohibiting the noncomplying party from “supporting or opposing designated claims”, or introducing evidence on a particular point (subd 2). Relief of this nature should adequately protect the plaintiffs’ interests without intolerably burdening the newspaper. Indeed, as indicated, the publication agreed to accept such a limitation in defense of the suit by stating its willingness to defend that allegation of malice by relying on proof of its own independent investigation, without placing any reliance on its source. The court should have limited its order accordingly.
To the extent the plaintiffs demand disclosure of the letter writer’s identity in order to commence a suit against the author, which was the original basis for the demand, the sanctions authorized by CPLR 3126 are not available. That request has no bearing on the plaintiffs’ action against these defendants. In fact the information was not requested by notice or stipulation pursuant to CPLR 3102 (subd [b]) which prescribes the “normal method” for disclosure between parties to a pending suit. It was sought
Holding the defendants in contempt for failure to supply the information necessary to commence a suit against the letter writer is prohibited by the Shield Law. Use of alternative sanctions pursuant to CPLR 3126 should also be precluded, not only because the plaintiffs treated these defendants as nonparties when they obtained the discovery order to aid the contemplated suit, but because the basic policy of the Shield Law would be undermined if CPLR 3126 were not strictly read to accord journalists that status under these circumstances. As indicated above, the theory behind the Shield Law is that many valuable sources of news will be lost if journalists can be compelled on threat of contempt to reveal their sources in public forums, thus exposing them to legal, and possibly illegal, risks. This policy would be subverted if the alternatives to contempt authorized by CPLR 3126 could be invoked solely to coerce a newspaper into exposing its source to a potential civil suit for damages.
Accordingly, the order of the Appellate Division should be affirmed.
That does not mean, as the dissent states, that the defendants “may control the course of plaintiffs’ lawsuit by dictating what plaintiffs may discover”. We simply note that the concession made by the defendants in this case appears to provide reasonable protection to the plaintiffs, who have not contended otherwise or proposed any alternative sanction which would more adequately assist them in pursuing their suit without knowledge of the source’s identity. The plaintiffs have simply taken the position that any failure on the part of the defendants to make full disclosure of every item “reasonably” demanded, should entitle the plaintiffs to obtain a default judgment.
Dissenting Opinion
(dissenting). Although the majority concedes, as it must, that the sole purpose of the Shield Law is to protect journalists from charges of contempt and that this
Preliminarily, I note my complete agreement with the majority that section 79-h of the Civil Rights Law was enacted solely to protect journalists from being held in contempt for refusing to disclose the source of any particular news item. (NY Legis Ann, 1970, pp 33-34, 508.) I also agree that “the Legislature has never established an absolute right or granted journalists complete immunity from all legal consequences of refusing to disclose evidence relating to a news source” (majority opn, p 165) and that the Shield Law “cannot be fairly read to include general exemption from the sanctions authorized by CPLR 3126” (p 166). Thus, the majority today correctly eschews reliance upon the reasoning of the Appellate Division. Indeed, to hold otherwise would be to engage in a flagrant exercise of judicial legislation whereby journalists would be cloaked with absolute immunity from having to disclose the source of news reports. While it may be that such a law is desirable, the fact remains that the Legislature, which in our scheme of separation of powers is the body charged with making such determinations, has decided otherwise.
Notwithstanding the clear intent of the Shield Law not to exempt journalists from the sanctions authorized by CPLR 3126, the majority affirms the order of the Appellate Division upon the ground that the sanction imposed by the trial court — striking defendants’ answer — was unnecessary because the defendants agreed “to defend th[e] allegation of malice by relying on proof of its own independent investigation, without placing any reliance on its source.” It is with this reasoning, offered without supporting authority, that I cannot agree.
CPLR 3101 (subd [a]) makes clear what information may be obtained by parties to a lawsuit: “There shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burof proof”. (Emphasis supplied.) We have consistently construed the discovery provisions of the CPLR liberally “to require disclosure ‘of any facts bearing on the controversy which will assist [parties’] preparation for trial’”. (Cynthia B. v New Rochelle Hosp. Med. Center, 60 NY2d 452, 461, quoting from Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406.) There can be no doubt that the identity of the letter writer in the case before us is relevant to the issue of malice. Indeed, plaintiffs’ ability to satisfy the standard set forth in New York Times Co. v Sullivan (376 US 254) by proving that defendants acted with actual malice in publishing the letter may well turn upon their learning the identity and, insofar as known, the motivation of the author.
My departure from the majority, therefore, concerns the proper sanction to be imposed upon defendants for wrongfully refusing to comply with the court’s disclosure order. While we all agree that first and foremost the sanction imposed upon the disobedient defendants must adequately protect the plaintiffs’ interests (Feingold v Walworth Bros., 238 NY 446), the majority, without holding that the trial court abused its discretion in striking defendants’ answer pursuant to CPLR 3126 (subd 3), believes a different remedy, presumably less drastic, should have been imposed pursuant to CPLR 3126. However, a brief glimpse at the alternative sanction which the majority would impose — precluding defendants from “ ‘supporting or opposing designated claims’, or introducing evidence on a particular point” (CPLR 3126, subd 2) (majority opn, p 167) — reveals that it is no sanction at all and does nothing to protect plaintiffs’ interests in obtaining lawfully discoverable information such as the identity of the letter writer.
The majority would allow defendants to defy the lawful disclosure order and to deprive plaintiffs of important discoverable information simply because defendants promised not to use the information in preparing their defense. Furthermore, the sanction the majority favors would be meaningless because there would be no need for defendants to introduce evidence on the issue of malice if plain
To be distinguished from this case is a situation such as that in Feingold v Walworth Bros. (238 NY 446, supra). In that case, plaintiff sought discovery of documents necessary to establish the value of the corporate stock of which he alleged he was defrauded by defendants. Plaintiff claimed it was worth $200,000, while defendants pegged its value at $20,000. Since plaintiff sought the disputed records solely for purposes of proving the stock was worth $200,000, this court held that an order precluding defendants from asserting a claim that the value of the stock was less than $200,000, rather than an order striking defendants’ answer, was the appropriate sanction. The court correctly reasoned that the more limited sanction was adequate to fully protect plaintiff’s interest in securing the documents he requested and that a harsher penalty would exceed the court’s power to punish defendants for failing to obey an order of disclosure. By sharp contrast, the sanction the majority would impose in the instant case would not begin to protect plaintiffs’ interests.
Accordingly, I would reverse the order of the Appellate Division and reinstate the order of Supreme Court.
Order affirmed, with costs. Question certified answered in the affirmative.
By way of illustration, consider the following hypothetical situation: the anonymous letter writer was a reporter for the defendant newspaper who harbored a widely
